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Protecting Architectural Forms as Traditional Cultural Expression? Why WIPO Should Go Back to the Drafting Table

In recent decades, developing countries and indigenous communities have increasingly asserted the necessity of protecting so-called “traditional cultural expression” – the array of creative expressions integral to the cultural and social identities of indigenous and local communities – from improper exploitation. Among the more prominent voices responding to such calls has been the World Intellectual Property Organization (WIPO), which has worked to develop an international framework affording traditional cultural expression and folklore sui generis rights. This Note examines WIPO’s recently promulgated Revised Draft Provisions for the Protection of Traditional Cultural Expressions/Expressions of Folklore, which would, among other things, loosely define “architectural forms” as a protectable traditional cultural expression. In evaluating the proposed protection for “architectural forms,” this Note simultaneously assesses the profound tensions WIPO’s Revised Draft Provisions create with respect to the existing U.S. intellectual property regime and identifies the general limits of WIPO’s current vision for protecting traditional cultural expression in general. Ultimately, this Note argues that WIPO’s proposals should not include the vaguely defined category of “architectural forms” as protectable subject matter because the currently broad language would raise serious issues as to public domain and free speech rights, and could seriously impair creative expression, cultural development and the progress of an important professional service.